Trump's Police Commission Suggests Doing The Same Things That Haven't Worked For Years Will Reduce Violent Crime

from the let's-see...-steal-more-cash,-give-more-money-to-drug-warriors... dept

[Note: this is one in a series of posts on the Presidential Commission on Law Enforcement's lengthy report on all things police-related.]

During his, shall we say… tumultuous single term as president, Donald Trump made it clear law enforcement people were better than regular people, even though a whole lot of regular people were saying otherwise at the time.

President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.

SPOILER ALERT: the Trump Administration did not end it. In fact, he and the DOJ's coddling of law enforcement may have made it worse. The DOJ scaled back its civil rights investigations of police departments and police departments responded by killing people just as often as they ever did, despite historic dips in violent crime rates. And when a white cop kneeled on an unarmed black man's neck until he was dead (and for three minutes after another officer failed to detect a pulse), the country exploded.

Six months prior to this explosion, Trump ordered the formation of a commission on policing. All positions were filled by cops and prosecutors. A little more than a year later, its report [PDF] has been delivered. The report blames pretty much everyone but cops for the lack of respect shown to law enforcement. It also says several bad things about encryption and strongly suggests Congress mandate backdoors for easy law enforcement access.

But the report also hopes to address other law enforcement issues, including some recent spikes in violent crime around the nation. While the Commission does recognize some underlying social issues contribute to criminal activity, it also thinks the nation can police itself out of this current uptick in crime.

It says police should focus more on violent crime, which no one actually disagrees with… except maybe the police. Law enforcement agencies solve less than a third of rapes and less than two-thirds of murder cases. If you want to rob somebody, there's a 70% chance you'll get away with it. Meanwhile, cops camp out on interstates or highways running through small towns, hoping to hand out expensive speeding tickets or shake people down for their cash. The DEA, ATF, and FBI all engage in sting operations that sound a whole lot more like entrapment to ensure a steady stream of criminal defendants but do nothing to actually lower crime rates or take dangerous criminals off the street.

The Commission is concerned about violent crime, even if its target audience doesn't appear to be.

Despite notable decreases in national crime rates over the past three decades, there remain many communities—especially in rural, tribal, and urban jurisdictions—that suffer from disproportionately high levels of violence and victimization. No citizen and no community should be left behind from crime reduction efforts. The rule of law must apply everywhere and to all people for it to properly guarantee citizens their peace and liberty. Unfortunately, violent gangs and drug trafficking organizations, empowered and armed by the illicit firearms trade, still terrorize neighborhoods. Criminals continue to abuse vulnerable populations, including women and children, at unacceptable rates in the form of human trafficking, sex abuse, and domestic violence.

But while the Commission says high-crime communities shouldn't be "left behind," the report speaks to (and for) a nation of law enforcement agencies that has decided (and gotten courts to agree with it) that people in high-crime areas are criminals and should be subjected to things like stop-and-frisk programs and highly-questionable gang databases. Their mere existence in high-crime areas makes them inherently suspicious, allowing cops to harass people who are already suffering from the impact of near-constant criminal activity.

The Commission has suggestions for reducing violent crime. And some of them are very problematic.

First, it suggests something called "pulling levers." This is basically "problem-oriented policing" -- a tactic that involves targeting one specific form of crime and using increased policing/deterrence in hopes that the ripple effect will reduce other associated crimes. One report (albeit one funded and overseen by the DOJ) says this works. But in other cases, POP/"pulling levers" produced no noticeable or sustainable gains in the fight against violent crime.

The Commission also suggests more of the same stuff law enforcement has been doing for years, like forming gang task forces. It says local agencies should partner with federal agencies, like the ATF, DEA, and FBI to combat gang violence. This has been done for forever and has been a failure, according to the Commission's own (inadvertent) reckoning.

Gangs are increasingly more numerous in number and membership. The number of gang members in the United States likely exceeds one million. The FBI states that “approximately 33,000 violent street gangs, motorcycle gangs, and prison gangs are criminally active in the U.S. today.

It's unclear how doing things that have already been done will curb this growth market, but the Commission clearly believes enough repetition will turn the tide of violent gang crime. Adding agencies best known for scoring their own goals in wars on crime/terror (when not just relieving people of their cash) isn't going to help anything. At best, things will continue at this pace, which presumably means 100% of American citizens will be gang members within the next 25 years.

Going down the list, things get even more negligible. More task forces. More gun task forces. Harsher gun sentences. More ballistic forensic training. More money dumped into ballistic forensics. More ATF agents to do all of the above, even if the ATF is best known for giving people illegal guns and busting them for trying to bust fake stash houses containing zero drugs, zero drug dealers, and zero contraband of any kind.

The report also big-ups asset forfeiture, something abused so frequently and easily cops refer to it as "shopping" and citizens refer to it as "legalized theft."

One useful tool in disrupting illegal enterprises is asset forfeiture, which deprives criminals of the proceeds of their illegal activity. It also helps to deter crime and the seizures can be used to restore property to the victims. The DOJ has made use of criminal and civil asset forfeiture as an effective mechanism to counter sophisticated criminal actors. Since 2002, the DOJ has transferred more than $8.5 billion in forfeited funds to victims of crime, and notably, forfeited funds are reinvested back into state and local law enforcement through the Equitable Sharing Program to promote and enhance cooperation among federal, state, local, and tribal law enforcement agencies. In the last five years, the DOJ has equitably shared approximately $1.75 billion with state, local, and tribal law enforcement agencies.

While the Commission pats the DOJ on the back for seizing so much stuff, its own stats on crime increases, the prevalence of gangs, and law enforcement's inability to slow the flow of drugs into this country despite a 50-year head start undercut the narrative that forfeiture does anything other than enrich the agencies that participate in it. Doubling down on the wrongness, the Commission calls for more drug task forces (mainly known for legalized theft, no-knock warrants, and plenty of rights violations) and more surveillance of interstate highways (a great place for harassing motorists out of their cash). How this will suddenly impact drug cartels is unknown, considering this is something that has also been done for decades and has had almost zero effect on the drug trade.

The Commission also asks for more en masse rights violations. It suggests the federal government create a national license plate reader database. It also says the US Postal Service should be able to search more packages without a warrant.

It also recommends better enforcement and investigation of domestic violence cases, which is good. But nowhere in the report does it acknowledge law enforcement officers commit acts of domestic violence at a higher rate than those being policed by them.

If America's cops are going to start bringing violent crime rates back down, they'll need better ideas than this. Then again, they may not need to do anything at all. What's being observed can't be called a trend. A few outliers during a time of historic crime lows is to be expected. What it shouldn't be is the impetus for repeating the failures of the past.

Filed Under: doj, donald trump, fbi, law enforcement, police, policing, presidential commission on law enforcement

Mitch McConnell Using Section 230 Repeal As A Poison Pill To Avoid $2k Stimulus Checks

from the everything-is-stupid dept

As you likely know by now, President Trump is trying to use his last few weeks in office to use various levers of power remaining to him to make sure he fucks up the open internet. However, he also threw a wrench in the works of the long-overdue and way too small COVID relief package by saying that the checks to individuals should be $2,000 rather than $600. He's not wrong, but it was bizarre that his own White House was part of the negotiations that made sure the checks were smaller. It's almost as if the President and his own administration don't communicate very much.

House Democrats took up the cause, and pushed for the $2,000, and many House Republicans went along with it, recognizing how popular an idea this was. The problem, of course, is that Mitch McConnell has absolutely no interest in this at all. Earlier today, Mitch McConnell blocked the motion to vote on increasing the checks to $2,000. Afterwards, he announced, in the most awkward language possible, that he wants to link the raised stimulus to... Section 230 repeal and the made-up issue of "election fraud."

McConnell on CHECKS, SECT. 230, ELECTION FRAUD: "Those are the three important subjects the President has linked together. This week the Senate will begin a process to bring these three priorities into focus."

It's not difficult to figure out what's actually happening here. McConnell does not want the larger checks going out. He's spent months trying to limit the size of any stimulus plan. So, his plan now is to "link" the issue to things that he knows will not pass in an actual vote. Basically, Section 230 (and the made up issue of election fraud) are poison pills to kill the stimulus plan.

This is horrific on both sides of the equation: using Section 230 and the open internet as a pawn in this game, and his resistance to actually putting together a stimulus plan that helps Americans who have suffered from their own government's total mismanagement of the pandemic. It's difficult not to be cynical about politics when you have people like Mitch McConnell pulling the strings.

Filed Under: covid, donald trump, election fraud, mitch mcconnell, poison pill, section 230, stimulus

Presidential Commission On Law Enforcement Says Pretty Much Everyone But Cops Are To Blame For The Shitty State Of American Policing

from the building-relationships-through-[re-reads-report]-blaming-taxpayers dept

[Note: this is one of what will probably be several posts covering the Commission's 332-page report. There's a lot to cover in here and one post simply isn't enough to cover everything in it. Stay tuned.]

President Trump took office and immediately declared war on Americans. The only good people are government people. And the best people of all are law enforcement people, who were immediately elevated above those they served by the new leader of our nation.

One of the fundamental rights of every American is to live in a safe community. A Trump Administration will empower our law enforcement officers to do their jobs and keep our streets free of crime and violence. The Trump Administration will be a law and order administration. President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.

First, there is no right to "live in a safe community." Second, Trump failed to end the "dangerous anti-police atmosphere." The "atmosphere" isn't wrong, as cops proved again and again. It's deserved. And it needs more than presidential proclamation to turn it around.

Four exceedingly long years have passed. Trump is a few weeks away from exiting the office he was incapable of running. But one final shot is being delivered by his Justice Department -- the culmination of months of research and years of pro-cop agitation.

The Presidential Commission on Law Enforcement and the Administration of Justice has released its report -- one mandated by a 2019 Executive Order. In it, Trump ordered the Commission (now missing its chief rabble rouser, recently-resigned AG Bill Barr) to conduct a "modern study of the state of American policing." The report is supposed to give America guidance on fighting crime and addressing multiple law enforcement issues. Perhaps more importantly, the report is supposed to "promote the rule of law," a term Trump has used repeatedly during his tenure, but only when the rules and laws aren't being applied to him.

The report [PDF] lists the issues the Commission attempted to address. It leads off with presumably the most important issue: the perceived screwing of law enforcement agencies by all and sundry.

Respect for the Rule of Law and Law Enforcement focused on the trend of diminished respect for law enforcement and the laws they enforce. The group specifically evaluated how under-enforcement of the criminal law in certain jurisdictions affects public safety, public perception of law enforcement and the laws it enforces, police resources and morale, and the rule of law. The group also evaluated how to increase respect for law enforcement and how a lack of respect for law enforcement impacts public safety and the rule of law.

"Diminished respect." This should have forced the Commission to examine why respect has been diminished. Instead, the Commission focuses on non-cops and non-issues. There's definitely a problem here. It just isn't what the Commission thinks it is.

The report says it's not the protests, it's the riots -- ignoring the fact that there was plenty of needless escalation by law enforcement during the policing of these protests. Being angry about police violence apparently threatens public safety, folks.

This new public safety dynamic—while hopefully temporary—is exacerbated by the confluent civil unrest events and protests against law enforcement that continue to unfold in the aftermath of several high-profile use-of-force incidents. In particular, on May 25, 2020, the death of George Floyd at the hands of police officers in Minneapolis, Minnesota, sparked protests in cities and towns across the nation, which were sometimes overtaken by those intent on exploiting the situation for their own means. Law enforcement is sworn to uphold the constitutionally protected activities of those whose only intent is to exercise their legitimate right to protest, yet radical elements that bring violence and property destruction further strain law enforcement resources.

Fortunately, the Commission isn't as short-sighted as the man directing its efforts. There's a balance to be struck. But the lack of respect for law enforcement can't be laid at the feet of the policed. Respect is something earned, not something assumed. And law enforcement has done little to ensure its respect is earned. That's not how the Commission sees it, though.

Disrespect for law enforcement, unfortunately, readily becomes a disrespect for the law itself, which threatens the social order. Following the killing of George Floyd on May 25, 2020, which transpired during the work of this Commission, the civil protests against alleged police abuses were accompanied by significant lawlessness and increases in crime across many jurisdictions, and are a timely reminder of the importance that citizens have collective trust in their law enforcement to protect and serve their communities. The Commission’s review of law enforcement, therefore, rests on the foundational principle that law enforcement officers are the primary guarantors of communal safety. As such, government policies and programs should foremost promote public trust in law enforcement, but also deter abuses by police that undermine that trust.

While it's nice to see the Commission recognize law enforcement has played a role in its current disrespect quandary, these agencies have had years to fix endemic problems. But instead of fixing it, they've chosen to ignore, if not actually condone, officer misconduct. This problem didn't develop overnight. The current protests are the end result of years of indifference. The report recommends positive changes…

To that end, the Commission has recommended jurisdictions enhance officer training on using force and develop special procedures for investigating and prosecuting officer-involved shootings which promote accountability, transparency, impartiality, and due process.

… before stating that it's non-cop Americans who are really the problem:

Ultimately, however, the first and greatest reason for the use of force by police remains that individuals do not respect or comply with the lawful commands of law enforcement officers.

Resisting abuses of power is unamerican. Take your beating and hire a lawyer, says the Commission.

The criminal justice system affords many avenues for citizens to challenge the actions of police officers―it does not allow them to do so through physically resisting officers, nor does it allow law enforcement officers to surrender their duties to public safety whenever a subject resists. Because law enforcement has a duty to secure compliance by force, and because individuals have a legal right to challenge law enforcement force in subsequent proceedings, the Commission asserts that the primary prevention of unwarranted force by law enforcement is for citizens to “Comply, Then Complain.”

That's right, citizens: do what the Commission says. It's the only way cop business can be conducted as usual. Take the abuse and deal with the criminal charges.

The report ignores the reality of the situation. Most (97% [!!]) criminal charges result in plea deals, not an adjudication of the charges on their merits. Legal fees and settlements from misconduct lawsuits are paid by taxpayers. And that's only if the touted "avenue" actually pays off. In most cases, litigants are left with nothing, having paid for a lawsuit only to see it dead-ended by qualified immunity, a shield officers wield successfully in far too many lawsuits.

The report then goes further, absolving officers of almost any responsibility for their actions.

The police did not create and cannot resolve the social conditions that stimulate crime. They did not start and cannot stop the convulsive social changes that are taking place in America. They do not enact the laws that they are required to enforce, nor do they dispose of the criminals they arrest. The police are only one part of the criminal justice system; the criminal justice system is only one part of the government; and the government is only one part of society.

Helpfully, the report says cops can't do it all and suggests increased funding for social and mental health services. It also recommends some revamps of the criminal justice system, including greater transparency around plea deals, use of treatment courts and/or reentry services for certain crimes, and a better bail system that doesn't punish people just for being poor.

But the report doesn't suggest shifting funds away from law enforcement agencies to accomplish this. Instead, it suggests anything that meddles with the discretion of law enforcement officers will lead to greater disrespect and higher crime rates. The report goes on the attack against prosecutors who've decided to stop prosecuting some low-level crimes and suggests any politician who criticizes law enforcement is doing it solely to score political points.

Then it offers up a proactive Nuremberg defense of police officers: they shouldn't be treated with disrespect just because they're following orders.

Police officers may be the first and primary contact between the criminal justice system and the community, but they should not suffer the brunt of all social discontent simply because they are the agents of a system that the public primarily encounters.

It is therefore important to emphasize that law enforcement officers have an important but limited responsibility to execute the law, and that criticism towards officers should be accordingly limited to how they discharge that responsibility.

Completely failing to read the room, the Commission bemoans the fate of poor, poor ICE, which has been unfairly maligned just for enforcing the law.

Recent events in the arena of immigration law exemplify the detriment to law enforcement that occurs when executive non-enforcement violates the separation of powers. In or around 2017, after a change of presidential administration resulted in increased enforcement of immigration laws, critics of those laws attacked and vilified federal immigration law enforcement officials―the United States Immigration and Customs Enforcement (ICE)―for simply enforcing the laws they were sworn to uphold. The misdirected hostility towards ICE stemmed from the fallacy that it was the executive branch, not the United States Congress, that determined what laws to enforce.

It's not that this part of the report is all bad. But it serves mostly to exonerate cops and encourage them (and prosecutors) to leverage low-level crime as a way to control communities And it does this even as it calls for law enforcement agencies to focus on the most dangerous criminals and the most violent crimes -- the ones that harm communities the most.

The report says prosecutors shouldn't be allowed to exercise blanket discretion, deeming small-time possession and non-violent crimes unworthy of their attention or resources. It says qualified immunity should remain intact, despite its contribution to the same misconduct and excessive force the Commission says cops should strive to address.

Unfortunately, even when the report is good, it's still pretty bad. The Commission calls for building relationships with communities, but quotes Houston PD chief Art Acevedo, who is best known these days for allowing corrupt, lying cops to run wild, culminating in the killing of two Houston residents during a no-knock raid predicated on the statements of a nonexistent informant.

The Commission says law enforcement agencies should make public their internal guidelines for use of force and their investigative processes for officers accused of deploying excessive force. It calls for states to pass legislation demanding independent investigations of misconduct and excessive force deployment in cases that result in death or injury.

But in the end, the Commission's suggestions imply it's the public that's to blame for failing to educate itself , rather than the law enforcement agencies that have been anything but open and transparent since their inception.

Law enforcement agencies should prioritize community outreach and developing and maintaining strong, positive relationships with various segments of the community, while providing knowledge of and appreciation for the daily responsibilities of law enforcement.

The whole thing is skewed towards placing the burden of meeting cops in the middle on the general public. The report seems to assume (based on facts not in evidence) that cops have been engaged in good faith outreach efforts for years, only to see these efforts derailed by political opportunists and "progressive" prosecutors.

The fact is that cops have cultivated an "us vs. them" mindset for years. And now that they're reaping what they've spent years sowing, they're looking around for anything that serves the narrative they prefer. The targets are the same ones listed in the Commission's report: activists, politicians, community leaders, and reformers -- anyone that threatens their status quo. The Commission says some of the status quo must change if things are going to get better. But every suggestion for change is coupled with blame (direct and implied) for the people who act as their oversight or pay their salaries.

Filed Under: donald trump, law enforcement, police, presidential commission on law enforcement

Apparently Trump Refuses To Allow The Government To Do Anything At All Until The Open Internet Is Destroyed

from the we're-doing-what-now? dept

Well, the government is closing out the year with quite a mess. As threatened, President Trump today vetoed the massive National Defense Authorization Act, living up to his promise to veto it if it didn't include the complete revocation of Section 230 of the Communications Act, which has nothing to do with funding our military. Trump, for no reason at all, says that repealing Section 230 is important for "national security", which makes no sense at all (nor does he provide any rationale for this statement). Senate Armed Service chair and Trump buddy Senator Jim Inhofe had already threatened to override the veto should Trump go this route -- and has (correctly!) said that 230 has nothing at all to do with the NDAA. Inhofe has already responded to Trump's veto by asking Congress to "join me in making sure our troops have the resources and equipment they need to defend this nation." In other words, he's asking Congress to override the veto.

As for 230, Inhofe (ridiculously) claims that he does support a repeal of the law, but it should be in a separate legislative vehicle, and not the NDAA:

Meanwhile, the other big bills -- the omnibus government funding bill and the COVID relief bill, which are now tied together at the hip -- have also somehow been dragged into the Section 230 mess. Pretty much everyone assumed that after Congress voted overwhelmingly for both bills on Monday (as stupid as they were), Trump would sign them. After all, the White House was a part of the negotiations with Congressional leadership to come to the "compromise" that made it through.

But, last night, Trump threw a wrench in the works by claiming he wouldn't sign either unless the amount going to qualified individuals was $2,000 rather than $600. This seriously messed with his Republican colleagues who had pushed repeatedly to keep that number as low as possible. But the Democrats rightly seized on Trump's demands for $2,000 to agree with him and say they'll offer a revised bill with that more generous number.

Somehow, Section 230 had remained outside of the discussion over the funding bill and the stimulus bill, but Senator (who else?) Lindsey Graham has brought the two together by saying that he'll support the $2,000 part of the stimulus bill... if it also revokes 230. He's been tweeting more and more about this all day, and is now claiming that a refusal to revoke Section 230 means that Congress "cares more about big tech than working Americans."

That is, of course, utterly ridiculous. Section 230 protects working Americans more than it protects "big tech." It protects us posting on social media. It protects us forwarding emails. It protects us when we retweet nonsense. It makes the open internet possible, and enables the next generation of competitors to "big tech" to exist. Lindsey Graham's weird grandstanding about this is nonsense. Taking away 230 wouldn't rein in big tech, it would lock in big tech. They have large legal teams and can handle the disruption. This is why Facebook already supports major 230 reform. Zuckerberg knows that it would harm upstart competitors way more than Facebook.

There can be legitimate debates about Section 230 and how the open internet should work. The fact that it's suddenly being held hostage as part of the negotiations on three massive -- and totally unrelated to the internet -- bills is simply a case study in how broken Congress is, and how cynical politicians like Lindsey Graham have become.

Filed Under: congress, covid, donald trump, government funding, jim inhofe, lindsey graham, ndaa, omnibus, section 230, stimulus

'Law And Order' President Huddles With His Enablers, Considers Enacting Martial Law To Overturn His Election Loss

from the what-a-garbage-human-being dept

Great news, everyone! The outgoing president -- the one who refuses to accept the results of the popular vote or the electoral college vote -- has been horny on main for weeks. The only thing that could keep Trump in office is some sort of civil war, something he appears to be actively encouraging.

A bunch of politicians who've sold their souls for hospitality discounts at Trump properties are claiming the election is illegitimate. Multiple lawsuits have been filed. Most of them have failed. Those on the side of Trump seem to believe they can contest the legitimacy of the election without having any Trump votes nullified. Wild ass claims about voter fraud have yet to be proven.

None of this has worked. There's a new person headed to the Oval Office. But that doesn't mean Trump and his obsequious shitheels can't throw a wrench into the works. The Executive Branch has a bunch of uncontested powers and it appears this Executive Branch is willing to test the extent of those powers rather than hand over the office to its challenger and be forced to clean up the hundreds of fast food wrappers littering the White House floor.

Let's just check in with the "law and order" president -- the one who's respecting both aspects so much he's willing to put boots on the ground… in the US of A.

President Donald Trump convened a heated meeting in the Oval Office on Friday, including lawyer Sidney Powell and her client, former national security adviser Michael Flynn, two people familiar with the matter said, describing a session that began as an impromptu gathering but devolved and eventually broke out into screaming matches at certain points as some of Trump's aides pushed back on Powell and Flynn's more outrageous suggestions about overturning the election.

Flynn had suggested earlier this week that Trump could invoke martial law as part of his efforts to overturn the election that he lost to President-elect Joe Biden -- an idea that arose again during the meeting in the Oval Office, one of the people said.

Nothing says "small government conservatism" or "law and order" like presidential calls for troops roaming the streets rounding up people who won't pledge allegiance to the guy who lost both sets of votes. Thank ye various gods Trump pardoned Flynn, just so Flynn could pitch martial law to the failed autocrat who refuses to recognize a majority of the American voters don't want him in office anymore.

Then there's Sidney Powell -- a so-called lawyer whose batshit lawsuits caused Trump to kick her to the curb in late November. Powell gathered evidence derived from conspiracy theorists and the person behind QAnon (but I repeat myself…) and saw every court she encountered kick her out for wasting their time. To the true believers, this indicated the courts were part of the "deep state." To rational observers, this indicated Powell had spectacularly failed to find evidence of voter fraud.

To those less rational, this was "evidence" of something else. And now these morons are glomming onto a tweet from the equally moronic Dan Scavino, one of Trump's advisors. It's Trump looking at a portrait of Abraham Lincoln. And it's supposedly an endorsement of martial law, something Lincoln declared during the midst of an actual CIVIL FUCKING WAR. And it was ruled unconstitutional by the courts.

Forget 4-D chess. This is a whole new era of CalvinBall. Every failure is a victory. Every judicial benchslap is an argument for the forcible subjugation of citizens unwilling to view an election loser as an election winner.

The White House is on fire. And this time, it's not the Brits engaging in a last-ditch effort to reclaim authority over rebellious colonists. Instead, it's the party that co-opted Boston Tea Party imagery to push back against government overreach. The Tea Party may have had some admirable goals. But they sold them out to become part of Trump's entourage -- people willing to raise Gadsden flags while welcoming the government's attempts to take their rights (guns, voting, speech) away at gunpoint. I sincerely hope the end result of this four-year debacle is the ostracizing of every political opportunist who exchanged their principles for an opportunity to lick Trump's size 6 platforms.

Filed Under: donald trump, election, law and order, michael flynn, sidney powell

Americans For Prosperity Sue Commerce Department To Find Out Who Was Influencing NTIA's Attack On Section 230

from the interesting-list dept

This is kind of fascinating. The group Americans for Prosperity have announced they've filed FOIA litigation against the Commerce Department after it has refused to respond to a FOIA request seeking communications between two former top NTIA officials that we've discussed here recently, regarding Section 230.

As background, you'll recall that after Twitter added two fact checks on Donald Trump's misleading tweets about mail-in ballots, Trump issued a bizarre executive order, demanding that (among other things) NTIA ask the FCC to reinterpret Section 230. Trump needed to order NTIA to do this because the FCC is supposed to be an independent agency and the President isn't supposed to order it to do anything. Indeed, as you'll recall, when Barrack Obama merely made a public statement about net neutrality, without directing the FCC to do anything, basically every Republican, including Donald Trump, whined that he was illegally trying to "bully' the FCC to do his bidding.

It quickly came out that two NTIA staffers were responsible for crafting the Executive Order: Adam Candeub, a long term critic of Section 230 who had just been hired to NTIA, and Nathan Simington. Candeub was later promoted to run NTIA and just this week was given a top job in the Justice Department. Simington, despite little qualifying experience, has been made an FCC Commissioner.

This was despite a separate FOIA request that revealed that Candeub and Simington, together, had emailed with a Fox News producer, asking to get Fox News host Laura Ingraham to attack Section 230 to help move the NTIA petition forward, and noting that it was important to do so to help re-elect Trump and help with down-ballot Republicans. This, of course, should be disqualifying for either of them to hold government jobs. When you get a job in the government you represent everyone and not just your own political party. You are not supposed to be using your government job to bully the media to do things for purely political reasons.

Given that, there should be tremendous interest in just who Candeub and Simington were talking to about Section 230. And Americans for Prosperity sent a FOIA request seeking exactly that information, asking for any emails between the two of them about Section 230 with a short list of known anti-Section 230 folks, including former Fox lobbyist (and the person responsible for getting FOSTA passed), Rick Lane, anti-230 FCC Commissioner Brendan Carr, AT&T (a company protected by 230, but which has decided to attack the law because it hates Google), DCI Group (a famously sketchy lobbying organization) and a bunch of others.

The full complaint details what happened:

On October 26, 2020, NTIA transmitted its first interim production, which contained 128 records in 35 electronic files. Ex. 5. Thirty-five records were withheld “in part or in their entirety,” under Exemption 5, but without identifying any relevant privilege. Id. An additional eight records were “withheld in part under Exemption 6.”

In this production, one record revealed that Mr. Candeub sent an email from a government email address to his private, gmail.com email address.

On November 10, 2020, AFPF asked NTIA whether it could email the next production and when another interim or final production could be expected.

On November 11, 2020, AFPF raised concerns that the first interim production did not include any text messages or instant messages. Id. (“These should be included in ‘all communications’ as well as e-mail, hand-written notes, etc.”).

On November 16, 2020, NTIA responded that the second interim response was prepared, but the agency required an address clarification. Ex. 8. NTIA also claimed that AFPF’s “request only specified email, it did not specify text and IM. If [AFPF] would like to request text messages and IM, [it] will need to file another FOIA request for those records.”

AFPF immediately confirmed its mailing address and noted that its initial FOIA request contained “no reference to seeking only e-mail records,” as it instead mentioned “all communications.” Id. AFPF further noted that this “matches the same language in [NTIA’s] . . . clarification confirmation e-mail from September 18 . . . . Therefore, the request covers text messages and IMs.” Id. AFPF also asked how many records were left after the second batch and when AFPF could expect to receive them.

NTIA responded that it does “not have a final count or an estimate of how many records will be responsive to [AFPF’s] request. Nor d[id it] have an estimate of when this will be completed.” Id. Additionally, NTIA attempted to justify its refusal to include records beyond e-mails in a search for “all communications” by pointing to a footnote in AFPF’s request that defines the term “record.”

On November 18, 2020, NTIA transmitted its second interim production, which contained 153 records in 39 electronic files. Ex. 9. Fifty-nine records were withheld “in part or in their entirety,” under Exemption 5, but without identifying any relevant privilege. Id. An additional twenty-five records were “withheld in part under Exemption 6.” Id. Additionally, fourteen records were referred to the Department of Justice and three to the Department of Commerce “for a direct response[.]”

On December 14, 2020, AFPF emailed NTIA noting that both Mr. Candeub and Mr. Simington will reportedly be leaving the agency. Ex. 10. Given these reports, AFPF requested “that NTIA take affirmative steps to preserve all potentially responsive records, including text message records and any private email account that may contain government records.”

To date, NTIA has not provided a final determination on AFPF’s request, nor has it released another interim or final production of responsive records.

And thus, the lawsuit for failing to comply with FOIA's requirements. As with most FOIA lawsuits, the main remedy sought is having NTIA actually cough up the records requested, as required by the law. It sure would be interesting to see what's there, and why NTIA seems unwilling to obey the law and hand over those records.

Filed Under: adam candeub, brendan carr, commerce department, donald trump, executive order, fcc, foia, nathan simington, ntia, rick lane, section 230, transparency
Companies: afp, at&t, dci

Dutch Prosecutors Say One Man Got Into Trump's Twitter Account With 'MAGA2020!' Password

from the p@ssw0rd! dept

This sort of thing will never stop amazing me. For any American President, one would assume they would have all kinds of advisers on all matters regarding security and best practices when it comes to the systems and technology they use. I'm old enough to remember when everyone freaked out over Barack Obama using a Blackberry, but at the time I hand-waived any such concerns under the assumption that there were checks in place to make such technology secure.

So how in the world did Donald Trump, often called America's first Twitter President, manage to have his Twitter account accessed using a laughably predictable password and 2-factor authentication?

Dutch prosecutors have found a hacker did successfully log in to Donald Trump's Twitter account by guessing his password - "MAGA2020!" But they will not be punishing Victor Gevers, who was acting "ethically".

Mr Gevers shared what he said were screenshots of the inside of Mr Trump's account on 22 October, during the final stages of the US presidential election. But at the time, the White House denied it had been hacked and Twitter said it had no evidence of it.

For what it's worth, both the White House and Twitter are both still claiming that they don't see any evidence that Gevers did in fact access Trump's Twitter account. That being said, Gevers is said to have provided evidence for what he'd done to Dutch police and the prosecutors there seem utterly convinced that Gevers did precisely what he said he had.

Dutch police said: "The hacker released the login himself.

"He later stated to police that he had investigated the strength of the password because there were major interests involved if this Twitter account could be taken over so shortly before the presidential election."

They had sent the US authorities their findings, they added.

For any other president, this sort of unauthorized access would be frustrating and somewhat concerning. For this president, however, who routinely announces hirings and firings of government employees via Twitter, and occasionally even announces American policy that way, it's horrifying. Someone who was actually nefarious could have created all kinds of chaos at the very least, or precipitated real life wars at worst, just by tweeting out from Trump's account. Imagine a world where a bad actor accesses Trump's account and tweets "America has declared war on North Korea. The battle begins in hours." It's not inconceivable that Seoul would be lost under North Korean artillery... or worse.

It's also worth noting that Gevers claims this isn't the first time he got access to Trump's account.

Earlier this year, Mr Gevers also claimed he and other security researchers had logged in to Mr Trump's Twitter account in 2016 using a password - "yourefired" - linked to another of his social-network accounts in a previous data breach.

The best people are apparently not advising the president on how to keep his vaunted Twitter account secure.

Filed Under: donald trump, hacking, maga2020, netherlands, passwords, security, victor gevers

District Court Rejects CDT's Challenge Of Trump's Ridiculous Executive Order On Section 230

from the no-standing dept

Back in May, you may recall, Donald Trump issued his silly executive order on Section 230 in response to Twitter adding a couple fact checks to blatant conspiracy theory nonsense that Trump was posting. A week later, the Center for Democracy and Technology (CDT) sued over the executive order, arguing that it was unconstitutional, and clearly retaliatory against Twitter.

When CDT filed the lawsuit I noted that the big question would be whether or not CDT could show standing in order to challenge the order, as it would be harder to prove that it impacted CDT directly. CDT argued that because the executive order would divert its attention and resources away from other, more important, fights regarding free speech online and government surveillance, it injured the organization.

On Friday, a judge agreed with my initial gut reaction and said that CDT failed to show standing. Basically, since the order only directed the government to do a bunch of stupid things, it didn't really impact CDT.

But Order 13,925 is most notable at this point for what it does not do. It imposes no obligation on CDT (or any other private party), but it merely directs government officials to take preliminary steps towards possible lawmaking. CDT’s claimed injury is not concrete or imminent and is thus insufficient to establish Article III standing. Even if CDT managed to clear the standing hurdle, it faces redressability and ripeness problems too. The Court will therefore dismiss this case for lack of jurisdiction.

The claim that this silly waste of time diverted resources from more serious issues doesn't impress the court:

If an organization alleges “only impairment of its advocacy,” that “will not suffice” to show standing. Turlock, 786 F.3d at 24; see also Food & Water Watch, 808 F.3d at 919 (“Our precedent makes clear that an organization’s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury.”). “This is true whether the advocacy takes place through litigation or administrative proceedings.” Turlock, 786 F.3d at 24. More, “an organization does not suffer an injury in fact where it expends resources to educate its members and others unless doing so subjects the organization to operational costs beyond those normally expended.” Food & Water Watch, 808 F.3d at 920 (cleaned up).

Though somewhat ridiculously the judge, Trevor McFadden (appointed by Donald Trump), actually throws in an incredibly silly line, claiming that CDT should be applauding Donald Trump's executive order, which he suggests (laughably) is about protecting free speech online.

CDT has not met its burden to show an injury to its interests. To begin, there does not appear to be a “direct conflict” between Order 13,925 and CDT’s stated mission. The Order expresses “the policy of the United States to foster clear ground rules promoting free and open debate on the internet.” ... CDT asserts a similar mission—to “advocat[e] in favor of First Amendment protection for speech on the Internet.” ... One would think that CDT would applaud the President’s desire to prevent online censorship. But no matter. The Court will take CDT at its word and assume that Order 13,925 directly conflicts with its interests. ... It still has not established an Article III injury.

That seems quite silly. Just because Trump's exec order claimed to be promoting free and open debate on the internet, the whole point was to move to stifle speech online, and that's what CDT was pointing out. Still, the standing point is a big one and CDT can't jump over that hurdle:

CDT has not alleged that Order 13,925 has “perceptibly impaired” its “ability to provide services.” Turlock, 786 F.3d at 24 (cleaned up). It claims that because of the Order it will have to “devote substantial resources to”: “participating in the planned FCC rulemaking proceeding,” “monitoring federal agencies’ reports,” “tracking any FTC action,” “participating in any proceedings that the Commission institutes,” and “engaging with federal and state policymakers.”...

This is plainly deficient. Circuit precedent is “clear that an organization’s use of resources for . . . advocacy is not sufficient to give rise to an Article III injury,” Food & Water Watch, 808 F.3d at 919, “whether the advocacy takes place through litigation or administrative proceedings,” Turlock, 786 F.3d at 24. CDT’s alleged injury—resources spent monitoring federal agencies, participating in their proceedings, and working with lawmakers—is one to its advocacy work, which is not a cognizable injury. ... In other words, CDT has shown that it is engaging in business as usual, not that Order 13,925 “causes an inhibition of [its] daily operations.” ...

All in all this is disappointing, but not unexpected. In the meantime, the executive order has already created its own mess in the form of the NTIA petition to the FCC to reinterpret Section 230, which the FCC, led by total hypocrite Ajit Pai, has agreed to move forward with.

CDT may not have had standing to challenge the bogus order, but the order has still created a huge mess for the open internet. It was the kind of mess that principled people could have stopped much earlier, but they all went along with it, either because they're too clueless to understand Section 230 or they're too afraid of Donald Trump pointing his angry temper tantrums in their direction. One hopes that the issue will die with the new administration, but with recent moves like appointing the author of the NTIA petition to the FCC, and some other rumors -- combined with Biden's top tech advisor pushing to ditch 230 entirely -- the trail of destruction this executive order is causing isn't likely to end any time soon.

Filed Under: donald trump, executive order, section 230, standing
Companies: cdt

Trump Makes It Official: He's Going To Pull Military Funding, Because Congress Won't Kill The Open Internet

from the really-now dept

There were some questions as to whether or not Trump would actually go through with his threat to veto the National Defense Authorization Act, which has been passed and signed into law every year for the past six decades, but it appears that is the case. The Office of Management and Budget (OMB) has officially notified Congress that Trump is vetoing the NDAA... because they refuse to kill off the open internet.

The letter it sent to Congress is... just completely disconnected from reality.

The Administration recognizes the importance of the National Defense Authorization Act (NDAA) to our national security. Unfortunately, this conference report fails to include critical national security measures, includes provisions that fail to respect our veterans and our military's history, and contradicts efforts by this Administration to put America first in our national security and foreign policy actions. Therefore, the Administration strongly opposes passage of the conference report to Accompany H.R. 6395.

There are three key complaints he raises in the letter. (1) The NDAA doesn't completely repeal Section 230 of the Communications Act (which has nothing to do with the military). (2) That it allows for the renaming of bases that were named after the Confederacy and (3) that it limits his ability to scream "national emergency" and use those claims as a reason to steal money from the military to build his stupid wall (as he's been doing).

The 230 bit is particularly stupid:

Despite bipartisan calls for addressing Section 230 of the Communications Decency Act, this bill fails to make any meaningful changes to that provision.

Um, yes, because it's got literally nothing to do with the military or the purpose of the NDAA. There is no reason to include anything related to 230 in the NDAA and multiple elected officials have explained that to Trump. But he wants to throw one of his temper tantrums instead.

Section 230 facilitates the spread of disinformation online and is a serious threat to our national security and election integrity. It should be repealed.

So he's finally expressed some rationalization for how 230 impacts national security, but he's wrong. The 1st Amendment is why disinformation can spread online and taking away 230 won't change that. And, I should note that one of the biggest vectors of disinformation that is spread online is... the President himself. Especially over the last month. And, I'd argue that the President has also been the biggest threat to election integrity.

It's Section 230 that has enabled many experts to speak out and show how the nonsense and disinformation that Trump and his cronies are spewing is inaccurate.

As for the claim about renaming bases named after Confederate Army officials, it's difficult to see how that is failing "to respect our veterans and our military's history." Remember, the Confederacy fought against the US military. You'd think it would be more respectful to our veterans not to have them serve from bases named after an army that fought against us. But Trump's gotta Trump.

Republicans in Congress now have a choice. They've been hinting that they'll override a Trump veto, and now is the time for them to stand up and make it clear that's exactly what they'll do.

Filed Under: confederate bases, congress, donald trump, military, military funding, ndaa, omb, section 230, veto

Trump Doubles Down On Threat To Defund Military Because People Are Mean To Him Online; Republicans Threaten To Override His Veto

from the what-a-way-to-end-the-presidency dept

On Tuesday, we highlighted that it looked like Congressional Republicans were willing to finally stand up to their party's insecure and whiny lame duck president and refuse to include a Section 230 repeal as part of the military authorization bill, the NDAA.

Senator Jim Inhofe, who heads the Senate Armed Services Committee and who lead the negotiation on the bill, has been a longtime supporter of the President, and has said that the two talk by phone every couple days. But on Wednesday, Inhofe apparently did his phone call telling Trump that the 230 repeal wasn't going into the NDAA while on a speakerphone walking down the hallway of a Senate building, meaning that people overheard Inhofe tell Trump that the 230 repeal wasn't going to happen.

On Thursday, the negotiations closed and a deal was made on the NDAA that does not include anything on Section 230 because, as Inhofe rightly notes, that's got nothing to do with the military at all. In response, Trump continued his temper tantrum and claims he really will veto the bill, putting the military he always claims to support so much at risk of severe cuts.

That's Trump saying that because the NDAA doesn't revoke Section 230, which Trump falsely says is "so bad for our National Security and Election Integrity" (it's not), he will veto. The thing is, everyone knows he's full of shit. And Republicans are not only saying that they have the votes to override a veto, they seem to be getting snippy with the President about it. Here's Republican Congressman Adam Kinzinger saying he'll vote to override the veto and concluding with the kind of thing you don't often hear from Republicans these days when talking to Trump: "Because it's really not about you."

No, it's not about him. But it is about him throwing a total whiny tantrum because people made fun of him online, and wanting to punish the entire internet and free speech in response. The idea that it's worth undermining the military (which he claims to support, and which frequently supports him) is... quite something.

Filed Under: confederate basis, congress, donald trump, jim inhofe, military, ndaa, republicans, section 230, veto